Defendant Gordon Johnson ("Johnson") is the director of the Illinois Department of Children and Family Services ("DCFS"). He is sued only in his official capacity. DCFS is an Illinois state agency responsible for the welfare of children whose parents are unwilling or unable to care for them. Amended Complaint at para. 10. As of the date of filing of the complaint, 15,000 children were in the custody of the DCFS. Am. Compl. at para. 9(a). When a child is removed from his or her parents, a "follow-up" caseworker is assigned to take responsibility for the child. Am. Compl. at para. 11. According to DCFS procedures, "the follow-up caseworker is to work with the family, arrange for appropriate services -- for example, homemakers, counselors, therapists, and day care -- and oversee the child's welfare including his or her medical needs, education, and, if the child is not immediately returned home, placement in a foster home, group home, or institutional care facility." Id.

The facts, as alleged in the complaint, paint a bleak and Dickensian picture of life under the auspices of the DCFS. Plaintiffs assert that there is little hope that children in the custody of the DCFS will receive services to which they are entitled. Id. at para. 12. Of the approximately 15,000 children in defendant's custody, more than 4,000 have been prevented from returning to their parents for two years or more. Am. Compl. at para. 21(a). As of June 30, 1986, more than 4,300 children in DCFS care had been in six or more placements. Id. at 21(b). These placements usually involve extended stays in mental hospitals, detention centers, group homes, shelters, and other institutions. Some children are kept in mental institutions long after professionals responsible for their treatment have declared them ready for discharge. Id. at 21(c). The institutions in which plaintiffs are "warehoused" do not offer adequate educational opportunities or, indeed, activities of any sort. Plaintiffs claim that the behavior of the children who reside in these institutions is controlled by brutal physical discipline. Id. These institutions are incapable of serving the needs of children and often cause serious damage to their physical and emotional well-being. In one DCFS shelter in May 1988, an eight-year-old girl was raped by two twelve-year-old boys. Id. at para. 16.

The institutional disrepair of DCFS is illustrated by the experience of the named plaintiffs in this case. For convenience, we allow the complaint to tell its own story:

(b) C.H. is a 15 year old male who has been in the DCFS system for less than six months. During that period of time he has had five different placements. As of the date of the original complaint, C.H. had been in a temporary shelter for four months. C.H. was removed from his mother's home after he had a confrontation with her boyfriend. Despite the obvious family tensions, as of the date of his interview with counsel in preparation for filing this lawsuit, C.H. and his mother had received no joint counselling or other support from DCFS seeking safely to reunite the family, and C.H. had not, to the best of his recollection, seen his caseworker for a month.

(c) J.E. is a 13 year old male who has been in the custody of DCFS as long as he can remember. J.E. wants to be reunited with his grandmother or his biological mother, who has told him she wants him back, but he has no recollection of any joint counselling with his mother during the years that he has been in DCFS' custody. J.E. has not had any counseling from DCFS at all for the last several months. Instead, he was warehoused for the three months prior to the filing of this lawsuit at the Henry Horner Children's Center ("Henry Horner"), an overcrowded, understaffed mental health facility which controls his behavior by administering strong doses of psychotropic mediation [sic]. J.E. constantly fears for his physical safety at Henry Horner, where assaults are a frequent occurrence. He has had numerous caseworkers during his time with DCFS and he rarely sees his current caseworker. J.E. has been placed in a series of foster and institutional placements and removed from the one foster family with whom he was able to form a bond. During the time J.E. has been in the custody of DCFS he has threatened suicide.

(d) C.Z. is a 17 year old female honor student who was placed in DCFS' custody approximately one year ago because she alleged she was sexually abused by her stepfather. During her year with DCFS, C.Z. has been in seven different placements. C.Z. has received no meaningful help from DCFS in her efforts to cope with the events giving rise to her allegations of abuse by her stepfather or the deterioration of her relationship with her mother. On information and belief, solely because DCFS had no appropriate placement for her, on two separate occasions C.Z. remained in a locked ward at Henry Horner long after the specific recommendations of mental health officials that she was ready for discharge. Prior to contact with counsel in preparation for filing this lawsuit, C.Z. had not seen her caseworker for two months. On one occasion, C.Z. slit her wrists in order to get the attention of the DCFS worker then in charge of her case.

(f) S.G., C.G., P.G. and A.G. are the brothers and sisters of E.G. and O.G. They range in age from one year to nine years. All of them have been placed together with the O'C. family, a different foster placement from E.G. and O.G. The separated children have not received scheduled monthly visits and, despite repeated requests from the O'C.s, DCFS has flatly refused to even schedule sibling visits on a weekly basis. Several of the G children have special needs. P.G., for example, was a premature baby who continues to suffer from a weak heart and asthma. C.G. has a variety of behavioral problems. Notwithstanding these needs, DCFS failed to fund for periods of six and eight months legitimate babysitting and other expenses associated with care of the G children, including, for example, funds for participation in various neighborhood and school programs designed to assist C.G. Even after funding has been promised for these expenses, actual payments have not been forthcoming and, at present, the foster parents are able to obtain babysitting they need in order to get P.G. to his various doctors' appointments only through the cooperation of a friend who is owed money for more than six weeks of work. By reason of DCFS' lack of cooperation with the O'C family, DCFS has forced the foster parents to the choice of either advancing literally hundreds of dollars to pay for services the state should provide, ignoring the childrens [sic] needs for such services or abandoning the children to another placement.

While the language of the Due Process Clause merely prohibits certain state action, the clause has been held to impose positive duties on the state in limited circumstances. A line of Supreme Court cases has acknowledged that substantive due process rights may emanate from a state's positive exercise of its power. In Estelle v. Gamble, 429 U.S. 97, 103-04, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment requires the state to provide adequate medical care to incarcerated prisoners. In Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), the Supreme Court extended this analysis beyond the Eighth Amendment setting, holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the state to provide involuntarily committed mental patients with such services as are necessary to ensure their reasonable safety from themselves or others. Id. at 314-25. The Court in Youngberg reasoned that "if it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions." Id. at 315-16. The Court also noted that the state is obligated to provide an individual in its care with "adequate food, shelter, clothing and medical care . . . and such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints." Id. at 324. See also, Spence v. Staras, 507 F.2d 554 (7th Cir. 1974) (estate of child inmate of mental institution who was beaten to death by fellow inmates of mental institution had a valid due process claim against state hospital officials who were aware that child had been beaten in the past, but failed to take steps to protect him). Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir. 1984), extended Youngberg to any person in state custody and held that the state was required to exercise accepted "professional judgment" in safeguarding the security of children in its custody. See also Doe v. Lambert, No. 87 C 8150 (N.D. Ill. April 19, 1988) (Kocoras, J.) (child has § 1983 claim against DCFS for injuries he received while in the foster home); Rubacha by Rubacha v. Coler, 607 F. Supp. 477, 479 (N.D. Ill. 1985) (Shadur, J.) (mentally retarded juvenile placed in DCFS-run shelter who was attacked and beaten by residents stated a Fourteenth Amendment cause of action against DCFS employees and officials).

Taken together, these cases stand for the proposition that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189, 109 S. Ct. 998, 1005, 103 L. Ed. 2d 249 (1989). See also Youngberg, 457 U.S. at 317 ("when a person is institutionalized -- and wholly dependent on the state . . . a duty to provide certain services and care does exist"). The Court in DeShaney explained the principle unifying Estelle and its progeny:

The rationale . . . is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

DeShaney, U.S. , 109 S. Ct. at 1005. The controlling standard for determining whether those rights have been violated is whether "professional judgment in fact was exercised." Youngberg, 475 U.S. at 321 (quotation omitted). The constitutional norm is violated "only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible did not base the decision on such a judgment." Id. at 323 (footnote omitted).

Defendant argues that, while he may be responsible for the physical well-being of plaintiffs while they are in his direct custody, he is not responsible for their emotional well-being. We cannot accept that DCFS does not assume some responsibility for the emotional as well as physical well-being of children in its care. In White v. Rochford, 592 F.2d 381 (7th Cir. 1979), the court held that the unjustified and arbitrary refusal by police officers to lend aid to children endangered by the officers' performance of their official duties gave rise to substantive due process rights. Judge Sprecher, speaking for the court, concluded that "the protections of the Due Process Clause against arbitrary intrusions on personal security includes both physical and emotional well-being." Id. at 385.

Cases cited by defendant do not compel a contrary conclusion because they do not involve children in state custody. Rather, they concern claims to freedom from emotional harm brought by members of the general public. See Conner v. Sticher, 801 F.2d 1266, 1269 (11th Cir. 1986) (there is no protectable constitutional interest to support a claim for damages for mental distress which results from legitimate police activity not intended to cause injury). Cameron v. I.R.S., 773 F.2d 126, 129 (7th Cir. 1985) (noting that the facts of the case were "bizarre," the court rejected a Bivens action involving allegations of IRS harassment in collection of taxes and stressed that "not every interference with peace of mind" is a deprivation within the meaning of the Constitution); Buikema v. Hayes, 562 F. Supp. 910, 911 (N.D. Ill. 1983) (a wife has no § 1983 claims of emotional distress arising out of alleged police violations of her husband's civil rights).

Defendant further argues that if he relinquishes direct control of a child to foster parents or other private institutional care, he loses responsibility for the well-being of the child. In DeShaney, the court left open the question of whether the state may be liable "under the Due Process clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents." DeShaney, U.S. , 109 S. Ct. at 1006 n.9. We hold that a child has a § 1983 action against the state for injuries suffered while in foster care where the state is deliberately indifferent to the likelihood that a foster home is unsafe, yet places a child there or allows the child to remain there. In Taylor By and Through Walker v. Ledbetter, 818 F.2d 791, 799 (11th Cir. 1987) (en banc), cert. denied sub nom., Ledbetter v. Taylor, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989), the Eleventh Circuit upheld a due process claim by a foster child, who had sued state and county officials responsible for her placement in a foster home, for injuries received while she was in the physical custody of the foster parents. The court held that "a child involuntarily placed in a foster home is in a situation . . . analogous to a prisoner in a penal institution and a child confined in a mental health facility . . . ." Id. at 797. The court premised its conclusion on the fact that the state authorities, by assuming custody of the child, had cut off the child's avenues of self-help:

We believe the risk of harm is great enough to bring foster children under the umbrella of protection afforded by the fourteenth amendment. Children in foster homes . . . are isolated; no persons outside the home setting are present to witness and report mistreatment. The children are helpless. Without the investigation, supervision, and constant contact required by statute, a child placed in a foster home is at the mercy of the foster parents.

Id. The Second Circuit has held to the same effect. See Doe v. New York City Dept of Social Services, 649 F.2d 134, 141-42 (2d Cir. 1981), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). Our conclusion is also supported by at least two decisions in this district. See Doe v. Lambert, No. 87 C 8150 (N.D. Ill. April 19, 1988) (Kocoras, J.) (child has § 1983 substantive due process claim against DCFS for injuries he suffered while in foster care); Doe v. Bobbitt, 665 F. Supp. 691, 697 (N.D. Ill. 1987) (Duff, J.) (complaint stated valid Fourteenth Amendment cause of action against state agency where a state agent removed child from home and placed him in a foster home which the agent suspected was unsafe and in which the child was injured).

In sum, plaintiffs have stated a substantive due process claim to be free from unreasonable and unnecessary intrusions upon their physical and emotional well-being, while directly or indirectly in state custody, and to be provided by the state with adequate food, shelter, clothing and medical care and minimally adequate training to secure these basic constitutional rights.
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Children in indirect state custody includes children who have been placed by the state in foster care or other non-state institutions. The controlling standard for determining whether those rights have been violated is whether "professional judgment in fact was exercised." Youngberg, 475 U.S. at 321 (quotation omitted).

There is no constitutional obligation on the state either to provide plaintiffs with welfare or housing benefits or to affirmatively insure a given type of family life, and none may be created by inference and misdirection through the penumbral constitutional family right to familial privacy. Though this Court has the power to insure that no state agency improperly interfere in Black's family life, it does not have the power to enforce the laudable sociological view of the importance of the family held by plaintiffs and their next friends.

Defendant mounts two further attacks on plaintiffs' constitutional claims. First, defendant argues that Count I is deficient in its entirety because it fails to properly plead that defendant intentionally deprived plaintiffs of any constitutional rights. Under § 1983, plaintiffs must first allege, as they have done, that defendant violated their federal constitutional or statutory rights. The second inquiry under § 1983 is whether "the conduct complained of was committed by a person acting under color of state law." Parratt, 451 U.S. at 535.

Plaintiffs are suing Johnson in his official capacity only. A suit against a government official acting in his official capacity is only "another way of pleading an action against an entity of which the officer is an agent." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018. To state a claim under § 1983 against a government entity, plaintiffs must allege sufficient facts to suggest that the unconstitutional and illegal acts of Johnson were done pursuant to a governmental custom or policy. Id. at 690-91. To establish a governmental custom or policy, the plaintiffs must allege facts which indicate problems which are "systemic in nature" such that knowledge of or deliberate indifference to their occurrence can be imputed to the governmental entity. Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir. 1981); see also City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (a showing of "deliberate indifference" is required to sustain a § 1983 action against a governmental entity). We read the complaint to allege that defendant committed the acts complained of with deliberate indifference to plaintiffs' rights and did so pursuant to an official policy or custom. This satisfies the requirements of § 1983.

Second, defendant argues that our recognition of substantive due process rights would amount to federal court intrusion into the economics of state government. Defendant asserts that it is exclusively within the realm of state government to decide how to allocate its resources. This argument is unsound. Concern with the availability of resources is rarely part of the constitutional decision-making process where a recognized constitutional right is violated.
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Thomas S. Brooks v. Morrow, 601 F. Supp. 1055 (W.D.N.C. 1984). In Brooks, the court was unsympathetic to the state's argument that it had placed a mentally retarded child in the best facilities available. The court held that the plaintiff was entitled to the placement which professionals determined was appropriate for him and did not have to settle for one simply because it was available. The court stated:

Equal protection is violated in the constitutional sense when a state is shown to have purposefully discriminated against those entitled to be treated in the same manner as others similarly situated. Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 64 S. Ct. 397 (1944). "[A] discriminatory purpose is not presumed; there must be a showing of 'clear and intentional discrimination.'" Id. (quoting Gundling v. Chicago, 177 U.S. 183, 186, 44 L. Ed. 725, 20 S. Ct. 633) (1900) (citation omitted). Plaintiffs allege that "the children in DCFS' custody fall into two classes: those who receive services and those who do not." Plaintiffs' Memorandum In Response to Defendant's Motion to Dismiss at p. 46. So framed, plaintiffs fail to state a claim for equal protection. The courts have consistently rejected similar equal protection arguments in the past. For example, in Huggins v. Isenbarger, 798 F.2d 203 (7th Cir. 1986), the court rejected a prison inmate's assertion that, under the Equal Protection Clause, prisoners who received parole constituted a separate class from those who did not, reasoning that such a distinction "is a truism rather than a legal objection." Id. at 206. To allow an equal protection claim each time a person does not receive statutory entitlements would effectively make the Equal Protection Clause an avenue of recovery in every case where the state is doling out statutory benefits.

Procedural Due Process

Plaintiffs assert that defendant has deprived them of services to which they have a statutory entitlement without due process of law. Specifically, plaintiffs seek to establish a constitutionally protected liberty and property interest in § 2 of the Abuse and Neglected Child Reporting Act ("ANCRA"), Ill. Rev. Stat. ch. 23, para. 2052, §§ 5005a and 5006 of the Act Creating the Department of Children and Family Services ("Act Creating DCFS"), Ill. Rev. Stat. ch. 23, paras. 5005 and 5006a, and § 1-2(3)(b) of the Juvenile Court Act, Ill. Rev. Stat. ch. 37, para. 801-2(3)(b). In determining whether plaintiffs have a constitutionally protected liberty or property interest in the benefits of these sections, the proper focus of inquiry is whether plaintiffs have a "legitimate claim of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The Court in Roth explained:

To have a property interest in a benefit a person clearly must have more than an abstract need or desire for it. . . . He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Id. at 577.

Plaintiffs' procedural due process claims suffer from at least one fatal infirmity. They have failed to point to standards in the statutory provisions they cite by which a due process hearing can determine what services are available or appropriate under the circumstances. The Seventh Circuit, in Eidson v. Pierce, 745 F.2d 453, 459-60 (7th Cir. 1984), held that "a legitimate claim of entitlement is created only when the statutes or regulations in question establish a framework of factual conditions delimiting entitlements which are capable of being explored at a due process hearing." See also Farmer v. Lane, 864 F.2d 473 (7th Cir. 1988) (same). Section 2 of ANCRA requires DCFS to provide a wide range of services to "stabilize the home environment, preserve family life whenever possible and protect the health and safety of children." Sections 5 and 6a of the Act creating DCFS are equally imprecise. The terms "care and training, family preservation services," and "appropriate services" provide little guidance as to what services are to be provided to which families and children. Similarly, § 1-2(3)(b) of the Juvenile Court Act, which confers rights on a child to "services necessary to his or her proper development, including health, education and social services" is incapable of precise definition. Plaintiffs' argument that the mandatory language contained in these sections creates a constitutionally protected liberty or property right is unfounded. In Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), the Supreme Court held that for state statutory language to create a legitimate claim of entitlement, mandatory language must be combined with "specific substantive predicates." Thus, under Hewitt, an entitlement is created only where the occurrence of a specific predicate event triggers provision of specific services. As noted above, the cited provisions do not contain the "specific substantive predicates" required by Hewitt. Indeed, plaintiffs concede as much when they agree that, while the mandatory language gives DCFS no discretion as to whether to provide services, the broad statutory language grants DCFS discretion about what particular services to provide. Plaintiffs' Response to Defendant's Motion to Dismiss at p. 45. This is insufficient to establish a liberty or property right under Hewitt.

Count II: Adoption Assistance and Child Welfare Act

The Adoption Assistance and Child Welfare Act ("AAA") is incorporated in Title IV, Parts B and E, of the Social Security Act, 42 U.S.C. §§ 620-28, 670-76 (1982). Plaintiffs allege that the State of Illinois receives sufficient federal funds to be bound by the provisions of the AAA, and that DCFS is the agency designated to use and distribute those funds. Complaint at para. 23. Plaintiffs allege that they have a right of action under 42 U.S.C. § 1983 and the AAA to seek an injunction to enforce the provisions of the AAA.

Section 1983

In Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), the Supreme Court held that § 1983 is available to redress violations of federal statutes by state agents. In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), and Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981), the Supreme Court articulated two exceptions to the application of § 1983 to remedy federal statutory violations: where the statute does not create enforceable "rights, privileges or immunities" within the meaning of § 1983 and where Congress has foreclosed such enforcement of the statute in the enactment itself.

The burden is on plaintiffs to prove that the statute creates enforceable rights. Vantage Healthcare Corp. v. Virginia Bd. of Medical Assistance Services, 684 F. Supp. 1329, 1331 (E.D. Va. 1988). To assert a substantive right under a statute, plaintiffs must demonstrate that Congress intended to create the right as a condition for federal funding:

Legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.

Pennhurst, 451 U.S. at 18. Nothing in Title IV-B can be said to intend the creation of the kind of rights to which a remedy in favor of persons such as plaintiffs could attach. Indeed, § 625, relied on by plaintiffs as creating enforceable rights, is the definitional section of Title IV-B. Section 625 defines "child welfare services" to mean "public social services which are directed toward the accomplishment of the purpose" listed by plaintiffs. It would be strange for Congress to create enforceable rights in the definitional section of a statute.

With respect to the AAA provisions of Title IV-E of the Social Security Act, we do not believe Congress intended to create an enforceable individual right of placement in the least restrictive (most family-like) setting or of "reasonable efforts" to eliminate the necessity of removing the child from the home or to return a child home. Plaintiffs' reliance on Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983), L.J. By And Through Darr v. Massinga, 838 F.2d 118 (4th Cir. 1988), and Joseph A. By Wolfe v. N.M. Dept. of Human Services, 575 F. Supp. 346 (D.N.M. 1982), as recognizing these rights is misplaced. In each of these cases the court merely held that children in state foster care could maintain a § 1983 action for prospective injunctive relief where it was alleged that the state had not complied with the statutorily mandated procedure of developing and periodically reviewing case plans for the children under its supervision. Nowhere did these courts recognize an entitlement to placement in the least restrictive setting or reasonable efforts by the state to maintain a stable home environment. In reviewing similar language in Pennhurst, the Supreme Court remarked that " i t is difficult to know what is meant by 'appropriate treatment' in the 'least restrictive setting,' and it is unlikely that a State would have accepted federal funds had it known that it would be bound to provide such treatment." Pennhurst, 451 U.S. at 24-25. See also Hunt v. Robeson County Dept. of Social Services, 816 F.2d 150, 153 (4th Cir. 1987) (section in statute requiring states to reserve from the funds allocated to them "'a reasonable amount. . . for energy crisis intervention'" does not create individual rights enforceable via § 1983).

We do hold, and defendant appears to concede,
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that the AAA creates an enforceable right to an individualized "case plan" and "case review system." The eligibility of a state to receive an appropriation under the AAA is predicated upon its implementation and operation of "a case review system . . . for each child receiving foster care under the supervision of the state." 42 U.S.C. § 627(a)(2)(B). The requirement is repeated and clarified in 42 U.S.C. § 671(a)(16), which requires "a case plan. . . for each child receiving foster care maintenance payments . . . [and] a case review system . . . with respect to each such child." We believe that these provisions impose affirmative obligations on the state and bestow corollary rights on plaintiffs that are private and enforceable under 42 U.S.C. § 1983. Other courts have held that plaintiffs have an enforceable right to a case plan and case review system. See Lynch, supra; Joseph A. by Wolfe, supra. We stress, however, that plaintiffs' entitlement to a case review system and an individualized case plan does not give rise to the sweeping rights asserted by plaintiffs, such as the right to an adequate number of case workers, family reunification services, services to "troubled families," or rights of meaningful visitation between siblings. The case review system and individualized case plans are procedures intended only to monitor the progress and well-being of children in state and foster care. Beyond the narrow requirements of a case plan and case review system, the AAA does not impose on the state the sweeping duties alleged by plaintiffs. The incremental effect of performing this obligation is not so great as to have a prohibitive effect on the state's choice of whether to participate in the plan or not.

Although defendant concedes that plaintiffs may have a substantive right to a case plan and case review system, he argues that Congress has foreclosed the use of § 1983 to enforce these rights. In a § 1983 action, defendant has the burden of demonstrating "by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. 'We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy' for the deprivation of a federally secured right." Wright v. Roanoke Redev. & Housing Auth. 479 U.S. 418, 423-24, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987) (quoting Smith v. Robinson, 468 U.S. 992, 1012, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984)).

In Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984), also relied upon by defendant, the Court considered whether Congress intended the administrative remedies contained in the Education of the Handicapped Act ("EHA"), 20 U.S.C. § 1400 et seq., to preclude § 1983 enforcement. In concluding that Congress intended the EHA to be the exclusive avenue through which a plaintiff can assert a claim to publicly financed special education, the Court emphasized that individual plaintiffs are granted "fair and adequate" hearings, "detailed procedural safeguards," and "a right to judicial review" in state or federal court. Id. at 1011.

By contrast, the AAA does not contain a comprehensive system of procedures and guarantees of the kind set out in the EHA, FWPCA and MPRSA. Unlike the FWPCA and MPRSA, it does not provide for private citizen suits directly against the offending officers of the DCFS. Similarly, unlike the EHA, the AAA does not contain a right to judicial review.

Implicit in the Lynch decision was the understanding that the Adoption Assistance Act bestowed upon children under state supervised foster care the right to an individualized case plan and a system for case review and that those children and the members of their natural and foster families were free to pursue a § 1983 action which sought to enjoin the state to comply with its mandated system for case review.

Scrivner, 816 F.2d at 263.

Harpole is equally distinguishable. In Harpole, the court dismissed a grandmother's wrongful death claim against the state for loss of a child that had been returned to its neglectful mother. The court found that, under the circumstances, the AAA does not provide a cause of action. In so holding, the court noted that the child was not in the state's custody when the injury occurred.

Implied Right of Action

We also find an implied right of action under the terms of the AAA. In Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court announced four relevant factors in determining whether to infer a cause of action from a federal statute:

First, is the plaintiff one of the class for whose especial benefit the statute was enacted? . . . Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Thus, the analysis is similar to whether Congress intended to preclude § 1983 actions. See Wright, 479 U.S. at 432-33 (O'Connor, J., dissenting) (applying Cort analysis in determining whether enforceable rights existed within the meaning of § 1983). See also Polchowski v. Gorris, 714 F.2d 749, 751 (7th Cir. 1983) (the inquiry under § 1983 resembles the analysis used to determine whether a private cause of action may be implied from an enactment of Congress).
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Therefore, we hold that plaintiffs have an implied right of action under the AAA, as well as an action under § 1983, to enforce their rights to a case review system and individualized case plans.

CONCLUSION

We grant defendant's motion in part. The plaintiffs have stated the following valid claims: (1) a Fourteenth Amendment substantive due process claim to be free from arbitrary intrusions upon their physical and emotional well-being while directly or indirectly in state custody, and to be provided with adequate food, shelter, clothing, medical care, and minimally adequate training to secure these basic constitutional rights. (2) Plaintiffs have a right of action under 42 U.S.C. § 1983 and the Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 620-28, 670-76, to require defendant to provide a case review system and individualized case plans.

We dismiss the following claims: (1) plaintiffs' equal protection claims; (2) plaintiffs' due process claims for violation of state statutory provisions; and (3) plaintiffs' remaining substantive due process claims, such as their claims to rights of placement in the least restrictive setting and sibling visitation. We restrict plaintiffs' enforceable claims under the AAA to those specified above.

DATED: MAY 30 1989

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